AAT Merits Review
Decision Making & Merits Review
Decisions to grant, refuse or cancel visas are usually made by departmental case officers. These officers are departmental employees who are making administrative decisions using power which has been delegated to them by the Minister. Unfortunately, they don’t always get it right. However, in most (not all) cases there is a right of merits review of those decisions in the AAT (Administrative Appeals Tribunal).
The decision to grant (or refuse) your visa application is made by a delegate of the Minister for Immigration. Section 65 Migration Act says that if that person is satisfied that all the requirements are met, the visa will be granted. If they are not satisfied, the visa will be refused.
Some requirements for visas are very clear (e.g. being less than a particular age). However, sometimes requirements are more subjective. For example a delegate has to find that a relationship is “genuine and continuing” for a partner visa or will have to find that there “compelling and compassionate” circumstances to waive some otherwise compulsory requirement (e.g. compliance with Schedule 3 of the Regulations). Issues about character can also be a reason to refuse a visa.
Usually, a visa applicant will receive a “section 57 natural justice” letter prior to a refusal. The section 57 letter will give details of what would be the reason for refusing the visa and inviting the applicant to make submissions to try and make the delegate change their mind.
Another option is to withdraw the visa application before the decision is made. Visa refusals are best to be avoided. There may be consequences for further (especially onshore) visa applications if you have had a refusal.
However, if your visa is refused you usually have a right of merits review in the AAT (Administrative Appeals Tribunal). The refusal letter will set out for you the review rights available. There won’t be a review if there is an offshore application and there is no “connection” to Australia (e.g. a sponsor).
A visa cancellation is a serious matter and can affect future visa applications and will result in an exclusion period from Australia.
There are several sections of the Migration Act which give the Department the power to cancel a visa. This power is usually exercised by delegates of the Minister, but in some serious cases can be exercised by the Minister personally.
The most common reasons why an existing visa might be cancelled includes:
- non-compliance with visa conditions (e.g. there is an “attendance” requirement for students); or
- that false information was provided with the visa application; or
- the visa holder has done something which means they are no longer of “good character”.
I will deal with cancellations on character grounds separately.
Usually cancellation is discretionary (this is not always the case on character grounds) and there will be a process of procedural fairness where the visa holder will have an opportunity to make submissions to the Department about why the visa should not be cancelled.
If a mandatory character cancellation has occurred you will have a right to make submissions about why that decision should be revoked.
You will generally get a right of merits review of the cancellation (or non-revocation) decision in the AAT. This won’t be the case if the Minister has personally made the decision.
Section 501 Migration Act sets out a number of reasons why someone might not be of good character. Most commonly, it’s because the person has been sentenced to a term of imprisonment of 12 months or more. It doesn’t matter if that was in Australia or overseas. Other reasons could be because of their past conduct or because they pose some danger to the Australian community.
If someone doesn’t pass the character test their visa may be refused of cancelled.
There are two different ways that character refusals and cancellations are dealt with:
- Mandatory cancellation will occur (section 501(3A) if the Minister is satisfied that the person has a substantial criminal record (serving a sentence of 12 months or more) and/or has engaged in child sex offences; or
- Discretionary cancellation/refusal of other matters.
In the case of mandatory cancellation, the applicant can make submissions about why the Minister should revoke the cancellation. The decision not to revoke is reviewable in the AAT.
In the case of discretionary cancellation/refusal the applicant can make submissions before cancellation. The decision to cancel is reviewable in the AAT.
In both cases regard will be had to a ministerial direction which sets out guidelines and factors to be considered in making refusal/cancellation and non-revocation decisions. The current version of that guideline is Ministerial Direction 90.
How can I help you?
Advice
I can provided advice on the issue which has been raised and what evidence you are going to need to satisfy the delegate.
Written submissions
Professionally written submissions can help to avoid a refusals or cancellation. Written submissions are also very important in the AAT and the Courts.
Representation
I can assist with preparation of your case and can appear as your advocate in the AAT or in the Court
What is merits review?
The principal objective of merits review is to:
“ensure that the administrative decision reached in a case is the correct and preferable decision. Correct in the sense that the decision made is consistent with law and policy, and preferable in the sense that, if there is an area of discretion in making a correct decision, the decision made is the most appropriate in the circumstances”.
Merits review involves another decision maker (this time a Tribunal member) using a “fresh set of eyes” to look at your application. The AAT is separate and independent of the department.
Unlike an appeal (or judicial review), you do not have to specify any “grounds” (reasons why you don’t agree with the decision) and you will have the opportunity to provide additional evidence and documents to the AAT. The Member will make the decision based on all the information which is before the Tribunal.
Time Limits
The time for lodging your AAT application cannot be extended. Applications are usually lodged online and it is very important that you meet the deadline for filing your application.
Minister's personal decisions
The AAT has no power to review a decision which is personally made by the Minister. If the Minister has personally made a decision you have to seek judicial review in the Federal Court.
| MERITS REVIEW OF REFUSALS AND CANCELLATIONS IN THE AAT | ||
| Reason for refusal/cancellation | Character test (501, 501CA) | Other |
| How long to lodge the application in the AAT (for onshore applicants)? | 9 days | 28 days |
| Which Division of the AAT | General Division | Migration and Refugee Division |
| How long with the process take? | There will be an expedited case management timetable set. A hearing will be held and there must be a decision within 84 days of the cancellation | There is a large backlog of matters and it can take more than 1 year before a hearing. Applicants in detention get priority processing |
| What material can I rely on? | The Minister’s lawyers will prepare a bundle of relevant G-documents. The Applicant can also rely on their own documents | The Applicant prepares whatever documents and material they want to rely on for their case |
| Procedure |
The Minister will be represented by lawyers and there will be cross examination of witnesses. Both sides will make written and oral submissions |
The hearing is inquisitorial (the Member will question the witnesses) and the Minister is not represented. The Applicant (or representative) can make written and oral submissions |
| How long will the hearing take? | Usually 2 days are allowed for these matters | Most hearings take 2-3 hours. |
| When will I get a decision? | Decision must be given within 84 days of the decision to refuse or cancel | Usually within a few weeks of the hearing |